Her plea indicating a desire to facilitate the process of justice is, having regard to the sheer logistics of running a trial with so many charges, of significant utilitarian value. I have allowed a discount of 20 per cent. Her co-operation in the ERISP and in permitting a voluntary search of her premises, together with the way in which she volunteered information, such as the location of the computers used, has contributed to this level of discount.
24 It was submitted that the plea of guilty, coming at the earliest opportunity and before the magistrate, should have alone resulted in a discount of 25 per cent. This is an argument that converts a guideline into a rule. It has been said repeatedly by this Court that the discount for the plea is a discretionary matter and that a particular offender has no entitlement to any particular discount: R v Scott [2003] NSWCCA 286; R v Newman [2004] NSWCCA 113. True it is that his Honour might have given a greater discount having regard to the assistance given by the applicant to police, but this is not a case where the applicant revealed to police unknown criminality such as would bring into play the principle in R v Ellis (1986) 6 NSWLR 603.
25 Ms Burgess pointed out that 23 fresh charges were laid after the applicant had originally been charged with the majority of offences that were before the court. She submitted that this Court should infer that the additional charges were as a result of information given by the applicant to police that enabled them to prepare a case against her in respect of those matters. There was no direct evidence before the sentencing judge, notwithstanding that the applicant gave evidence, as to what material the police had as to these extra charges and whether they could or could not have presented a case without the applicant's assistance. Certainly the applicant did help their investigation as to those matters in a significant way and his Honour acknowledged this was so in his remarks.
26 It was open for his Honour to come to the conclusion that, despite the assistance given and admissions made to investigating police in the ERISP, the applicant was not truly contrite for her criminal conduct, at least not to the degree where she should receive a significant discount in that regard. He heard her in the witness box and was entitled to form the view that he did.
27 Before leaving this ground I should remark that, notwithstanding what I have written above, I do not understand why his Honour was not prepared to give the applicant the benefit of a discount of 25 per cent for the utilitarian value of her pleas, particularly taking into account her admissions and ready assistance to police in what otherwise might have been a complex case. Even though Thomson and Houlton (2000) 49 NSWLR 383 makes it clear that the assessment of the discount to be awarded for the utilitarian value of the plea is a matter of discretion, it is discretion that has to be exercised judicially. In the absence of any reasons for not giving a discount at the top of the range in the circumstances of the present case, I can only assume, with respect, that his Honour has either determined that no case should merit the full discount approved in the guideline judgment or has some misunderstanding of the considerations which are to be taken into account in determining the appropriate discount. However, in the present case I do not believe that the failure to discount the sentence by more than 20 per cent is alone an error vitiating his sentencing discretion.
28 The third ground is that the sentence is manifestly excessive. This ground relies upon the subjective features of the applicant, in particular the fact that she was on protection arising from an assault upon her by a fellow inmate armed with a syringe. However, evidence was placed before this Court on the basis that it may be necessary for the applicant to be resentenced which reveals that she is no longer on protection but is participating in a mother and child program. Although she still fears reprisals by the prisoner who attacked her or her associates, this is not a matter that warrants a reduction in the sentence imposed. Nor does the fact that she is stressed about pending custody proceedings in respect of her child. In my opinion there is nothing in the material itself which indicates that the sentencing discretion miscarried or can justify interference by this Court absent error being shown.
29 The applicant needs little by way of rehabilitation except so far as her drug usage is concerned. On the other hand there was a real need for the sentence to denounce the applicant's conduct and reflect general deterrence, both because of the nature of the offences and because a government instrumentality, Medicare, was involved.
30 The criminality of the applicant was very high, notwithstanding the relatively modest amount of money obtained. I do not believe that the amount of the fraud is as decisive in an assessment of the criminality of the offender or the appropriate sentence as was urged upon us by Ms Burgess. The fact that other matters dealt with in the District Court and finding their way to this Court have involved considerably more loss to the victims does not indicate that the sentence is outside of the available range. The number of charges and the benefit obtained is merely one factor to be considered in all the circumstances of the case before the court.
31 Some of the cases referred to in the applicant's written submissions are positively misleading if only the bare facts and the sentences imposed are considered. For example, in respect to the case of R v Fraser [2000] NSWCCA 97, the summary in the submissions does not disclose that the offender in that case received a third discount of the sentence because of assistance in respect of the prosecution of another offender. In respect of R v Montesinos [2002] NSWCCA 470 the summary does not reveal that the applicant received a suspended sentence because of her mental illness.
32 The applicant also relied upon statistics in both the Local and District Courts. The statistics in relation to the Local Court matters are in my view irrelevant. Those in relation to the District Court showed that the sentence imposed upon the applicant came within the top 38 per cent of sentences for offences of this nature. I do not find that result supportive of the argument that the sentence was outside the appropriate range when nothing is known about the amount of money involved, the nature of the frauds or the extent of the criminality in those cases. It does show, however, that the sentence was a heavy one and at the very top of his Honour's discretion, but I am not satisfied that it exceeded it. I find no assistance from a comparison of non-parole period's so as to suggest that there is a range in relation to that part of a sentence against which a particular sentence should be judged.
33 There was a particular attack upon the sentence imposed for count 34. This was the offence upon which the Form 1 matters were ultimately taken into account. That count related to a false claim on the HCF for $148. It was submitted that a sentence of imprisonment for 3½ years was manifestly excessive having regard to the nature of the offence. But the sentence for that offence took into account the sixty matters on the Form 1 and the sentence imposed did not have to be proportionate to the criminality involved in the offence alone, disregarding the Form 1 matters. A submission to that effect was, as I understand it, ultimately withdrawn.
34 It was also argued that the sentence for that count was too high because the offences on the Form 1 were offences related to counts for which the applicant was otherwise sentenced and that there was, in effect, a double punishment involved in taking into account offences committed as part of some other offence for which sentence was being passed. However, counsel was unable to indicate that any offence on the Form 1 was actually an element of some other offence for which the applicant was before the court. I do not accept that there is any unfairness or undue harshness in offences being taken into account where those offences were separate and distinct acts of criminality committed on the way to committing some other offence for which she was being sentenced. For my part, I believe that there is a significant difference in criminality between, on the one hand, forging a document and then using it to perpetrate a fraud, and, on the other hand, perpetrating a fraud by using a document which is itself not fraudulent.
35 I would grant leave to appeal but dismiss the appeal.
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